Skip to Main Content

Keeping you informed

Supreme Court to Decide Whether Race Retaliation Claim Can Be Brought under Section 1981

    Client Alerts
  • September 28, 2007

On Tuesday, the U.S. Supreme Court agreed to hear a plaintiff’s appeal that could expand federal law prohibiting retaliation against employees making claims of race discrimination.  The case asks the question of whether race retaliation claims can be brought under Section 1981.  Section 1981 is a Reconstruction era civil rights law that prohibits race discrimination in the making of contracts.  The law has long been interpreted to include employment relationships.  Section 1981 is often used by plaintiffs who missed filing deadlines under Title VII, or to avoid the statutory damage caps provided under Title VII.


In CBOCS West v. Humphries, the plaintiff is an African-American former Cracker Barrel assistant manager who alleges that he was terminated after complaining of race discrimination by his general manager.  He sued under both Title VII and Section 1981, but his Title VII claims were dismissed due to procedural deficiencies.  Cracker Barrel sought dismissal of his race retaliation claim, contending that Section 1981 does not extend to claims of retaliation.  The district court dismissed the retaliation claim, but the Seventh Circuit Court of Appeals reversed, concluding in a 2-1 decision that Section 1981 contains an implied prohibition against retaliation in employment based on complaints of race discrimination.


If the Supreme Court affirms the Seventh Circuit’s decision, plaintiffs will have another legal weapon to use in claims alleging retaliation.  In last year’s Burlington Northern decision, the Court lowered the threshold for plaintiffs to claim actionable retaliation.  EEOC statistics reveal that more and more employees are claiming retaliation as part of their charges against employers.  Employers need to be extremely sensitive to disciplinary matters involving employees who have raised claims of race or other discrimination.